Saxton v. Bacon

Redfield, Ch. J. Before the revised statutes of 1840, the occupier of land was bound to fence against neat cattle, and could [544] not impound them, and by parity of reason could not maintain trespass for injuries committed by them, unless all the fences of his inclosure, where the damage was done and which he was bound to maintain, were legal. Horses and sheep were expressly excepted from this provision in regard to legal fences. By the revised statutes, the outward fences of inclosures adjoining the highway, and such as the owner of the cattle is bound to maintain, are excepted in terms. Adjoining proprietors have for many years, probably from the earliest existence of the State, with certain specific exceptions, been required to maintain division fences at their joint expense. Provisions have oxisted for establishing the division of the fence between the proprietors, and to enable one party, upon notice to and neglect of the other party, to build his proportion of the fence and recover the expense of the party in default, under the Statute. The statute of 1797 contains a provision subjecting the party in default, in regard to division fences, to the payment of “ all such damages as shall accrue to his or her neighbor, or neighbors thereby, to be appraised and ascertained by the fence viewers, they to appraise and ascertain the real value thereof; to be recovered with costs, in any court,” etc. In the revision of the statutes of 1840 these provisions are substantially preserved, with verbal modifications. By the Comp. Statutes, chapter 94, it is provided that the party in fault shall pay all damages sustained by the other party, “to be appraised by the fence viewers.” The statute of 1853 provides that the party in default in regard to building or keeping in repair his portion of the fence, “ shall be liable for all damages done to, or suffered by the opposite party in consequence of such neglect.” There is no provision for the intervention of the fence viewers in any way, in regard to these damages, nor is there any provision in regard to the mode of recovery, except that the party aggrieved may give ten days notice to the party in default, and thereafter proceed to build or repair the fence, and recover the expense of the party in default, and “ the full amount of damages arising from such neglect.” It is claimed this is the only remedy for the recovery of such damages. But we are not prepared to adopt this view. [545] If it were the purpose of the statute to make the right to recover damages, suffered through the neglect of building such fence, dependent upon the other party having proceeded to build them under the provisions of the statute, we think it fair to conclude there would have been some more specific provision to that effect. We think this incidental provision for recovering the damages, in connection with the expense of erecting or repairing the fence, does not make the right of recovery for such damages dependent upon the building or repairing of the fences. We can not regard the statute as having prescribed the exclusive remedy for the recovery of such damages. And the omission of such a provision, and the departure from the former statutes in regard to the intervention of the fence viewers, leads us to conclude that it was the purpose of the statute to leave the party to the ordinary remedy for injuries by common law action. The definition given of the extent of the liability is very broad, as broad as the common law liability for injuries suffered through the negligence of others. It seems to us that it is put very much upon the same ground. It is for “ all damages done to, or suffered by the opposite party in consequence of such neglect.” Thus leaving it very much where the common law puts the liability of a party bound to do an act, from the omission to do which an injury results to others. We think too, that the liability can not fairly be restricted to injuries connected with the use of the plaintiff’s land, but that it will extend to all damages which may fairly be said to be the legal and natural consequence of the defendant’s omission. And if the jury had in this case been required to find what is alleged in the declaration in regard to the vicious habits of the animal, there could be little question that the injury to the plaintiff’s horses would fairly be considered the natural result of leaving the defendant’s part of the fence in such a state of want of repair that the plaintiff’s horses escaped into the defendant’s pasture. But we do not regard it as indispensable to the maintenance of this action that the vicious habits of the animal should have been known to the defendant. But to rgcqver for this injury to the plaintiff’s horses, it should appear in some way that it was the natural consequence of the defendant’s neglect under the particular fact? [546] in the case, and which were known to the defendant. The defendant’s'neglect is more or less culpable in the view of the law, according to the circumstances under which it is suffered. It is. in a case like this, more in the nature of a breach of contract than of a voluntary wrong, perhaps. But in all actions for breach of contract the damages recoverable will extend to all losses which result in fact from the breach of the contract, and which it may fairly be presumed the party violating the contract might have anticipated would follow his omission to perform it. In the present case the law imposes upon the party the obligation of maintaining the portion of the fence through the defect of which the injury happened. The obligation and the liability are the same as if the duty were created by contract or by prescription, which is but one form of proving a contract or duty. We think, therefore, that all damages which the defendant might reasonably have anticipated might follow from his omission, are recoverable here. But as the present case went to the jury, it is evident no such question was taken into account by them. The charge made the defendant liable for damages in any way resulting from the escape of the horses. And we are not prepared to say that it can be determined, as matter of law, that the injury in question was one which might fairly be anticipated by one knowing the facts. That seems to be matter of fact. The law has established no rule upon the subject. The case of Powell v. Salisbury, 2 Younge & Jervis 391, where damages were allowed to be recovered where the plaintiff’s horses escaped into the defendant’s land through defect of fences which he was bound to repair, and were there killed by the falling of a haystack, is most analogous, perhaps, to the present, but by no means in point. So where the chain cable was warranted and through defect of construction broke, and the anchor was lost, it was held the value of the anchor so lost might be recovered; Borradaile v. Branton, 8 Taunt. 585; see also 1 Smith’s Lead. Cases 132, b We think this question must be settled by the jury. We are not able to find that the remedy against a party for consequential damages resulting from his omission to maintain his portion of the division fence, has ever in this State been made dependent upon the other party having built a legal fence on his [547] part. It must undoubtedly be shown that the injury resulted from the defect in that portion of the fence which it is the duty of the defendant to maintain. And unless the plaintiff has built his fence this could not well occur. Nor would it be likely to occur when the plaintiff’s fence was more defective than that of the defendant. But it has generally been supposed that if the plaintiff’s fences were so constructed that no defect in them contributed to the injury, that was all which could be required in the particular action; that any possible defect in the plaintiff’s fences, at most, amounted to a remote and not a proximate neglect, and consequently did not preclude the plaintiff’s recovery. When the party in default has built no fence at all it may possibly merit a different consideration. It might, in such case, be regarded as negligence in the other party to turn in his cattle until he had proceeded to build the fences himself, under the staU ute. But where the party proceeds to the performance of the duty, and does it so defectively that an injury occurs to the other party, we think, under existing provisions of the statute in this respect, he is liable, and in this form of action. Judgment reversed and case remanded.